Harassment, Welfare Top Court's Docket

WASHINGTON
— Hewing to the pattern of recent years, the US Supreme Court is poised to hear cases that will tidy up several legal questions, rather than engage in the kind of sweeping constitutional controversies that occupied it 30 years ago.

"This is a court that is most comfortable when making lawyer's law," says Michael Dorf, a professor of constitutional law at Columbia University Law School in New York.

Despite its penchant for legal nitty-gritty, several important issues will occupy the docket of the nation's highest court, including:

"You almost get the sense of them enjoying disagreements over what it means to carry a firearm in a way they don't enjoy disagreements over hot-button issues like racial discrimination or abortion," says Mr. Dorf.

Mark Tushnet, a professor at the Georgetown Law Center in Washington, says the new term may mirror the style of the 1997 term. "As with last year," he says, "they seem to be interested in technical issues, in mopping up statutory details."

The docket is only partly in place, and Dorf, Mr. Tushnet, and other analysts stress there is plenty of time for the justices to agree to hear additional cases, including several pending appeals that could become vehicles for major decisions.

They include a Wisconsin voucher program that permits the use of public funds to pay parochial-school tuition for low-income children, state bans on late-term abortions, and the regulation of tobacco by the Food and Drug Administration. Also, a Cincinnati campaign-finance-law appeal would provide an opportunity to revisit the landmark 1976 decision Buckley v. Valeo, the primary reform law, which critics say has made it all but impossible to pass meaningful campaign-finance restrictions. In addition, there are appeals involving affirmative action, gay rights, habeas corpus restrictions, and prison litigation reform.

"There are so many cases crying out for interpretation," says Ira Robbins, a law professor at American University's Washington College of Law. "It is necessary to give guidance not only to litigants and lawyers but to the lower federal courts."

He says he is particularly troubled by the Supreme Court's refusal so far to clarify recent laws aimed at restricting habeas corpus petitions, requests from someone in custody for intervention by a court. "If Congress intended to get habeas cases and death penalty cases speeded up, the Supreme Court may be thwarting that purpose by not giving us national interpretations of key provisions," he says.

Ironically, the one constitutional issue currently on everyone's mind in Washington - impeachment - is completely out of the hands of the Supreme Court. The key question of what constitutes "high crimes and misdemeanors," and whether President Clinton violated any of them, is up to Congress, not the justices of the Supreme Court.

But that doesn't mean the court may not play a critical role in the months ahead. It was a court ruling ordering the release of the White House tapes in the Watergate case that prompted President Nixon to resign rather than face impeachment.

Lewinsky-related cases

Meanwhile, some issues related to the Lewinsky scandal might yet be decided by the court. They include whether White House lawyers, such as deputy counsel Bruce Lindsey, may be forced to testify before a grand jury about confidential discussions with the president.

The White House argues that such discussions should be protected by attorney-client privilege even if Mr. Lindsey is technically a government lawyer. If they are not protected, then the president would be unable to rely on any White House lawyers during impeachment proceedings, they say.

The issue affects not only lawyers working in the White House, but all government lawyers, says Tushnet. "I was talking to people who have meetings in the White House, and they say their lawyers never take notes now because they might be subject to subpoena," he says.

In addition, the Secret Service is asking the court to consider whether agents who guard the president should be forced to testify before a grand jury.

Other appeals the court has agreed to hear include a challenge to a California law that limits welfare payments to new residents for one year to the amount residents received in their former home state. The difference can be great. A recipient who gets $673 in California, for example, receives only $144 in Mississippi.

The law is aimed at discouraging welfare recipients from moving to receive a better welfare check as state governments enact a patchwork of welfare-reform programs nationwide. At issue is whether the provision violates the equal-protection clause of the Constitution and the right of low-income Americans to travel.

The court will also examine whether a Colorado law regulating referendum-petition workers violates their free-speech rights by requiring them to be registered voters, wear badges, and file reports on how much they are paid. The state says the law is needed to prevent fraud in the ballot initiative process. Opponents say it discourages some people from participating in ballot initiatives, thus violating their First Amendment right to engage in a form of protected political speech.

Harassment at school

In the sexual-harassment case, a fifth-grade girl in Macon, Ga., allegedly endured five months of groping and lewd remarks from a boy assigned to sit next to her in class. Her and her parents' repeated complaints were ignored by school officials. The girl's grades dropped, and she contemplated suicide. Her mother sued the school district, claiming that a 1972 federal education law protects students from sexual harassment by fellow students. An appeals court agreed, but that decision was later reversed.

If the Supreme Court holds that the education statute outlaws sexual harassment among students, it will mean school districts nationwide could be liable if officials fail to act once a complaint is made. At the same time, it would mark a substantial broadening of the sexual-harassment laws to cover a wider population of girls and young women.